A.P. Bagchi Vs. Mrs. F. Morgan - Court Judgment

LegalCrystal Citation

legalcrystal.com/448953

Subject

Tenancy

Court

Allahabad

Decided On

Sep-17-1936

Reported in

AIR1937All36; 166Ind.Cas.897

Appellant

A.P. Bagchi

Respondent

Mrs. F. Morgan

Excerpt:.....and circumstances which cannot be questioned in second appeal. quite apart from this, we are satisfied that the defendant's case has not a leg to stand upon. the contract of lease as alleged by the defendant would become no doubt one of a permanent lease or lease in perpetuity which would hold good from generation to generation so long. 7. the case of the defendant has completely broken down, and it is not surprising that he should have failed......had never accepted the condition set up by the defendant regarding his continuance so long as he paid rent regularly, and there is again a further finding that she never accepted the term not to eject the defendant if rents were paid. the learned judge says : 'it seems to me that it is clear that she did not accept that condition.' the defendant relied on certain correspondence which passed between the ' parties prior to the occupation of the house by the defendant.2. the lower court has rightly pointed out that the defendant was a trained lawyer familiar with the work of courts, whereas the plaintiff was an old lady, a lay person, who could not be expected to be acquainted with the technicalities of the law. she had offered to let out the house on rent to the defendant on rs. 75 a.....

Judgment:

1. This is a defendant's appeal arising out of a suit for ejectment and arrears of rent from the defendant who occupied the plaintiff's house at No. 10 Albert Road. Admittedly the monthly rent fixed was Rs. 75. The plaintiff's case was that the defendant in spite of repeated notices to vacate the premises stuck to the place and did not deliver possession to the plaintiff. The main defence consisted of two pleas, namely : (1) That there was a contract of tenancy between the parties under which it was agreed that so long as the defendant continued to pay rent regularly and complied with the other conditions, the plaintiff would not be entitled to give him notice to quit; and (2) that 15 days' notice given on the 15th of a month by either party was essential. The trial Court decreed the claim, but on appeal the lower appellate Court has dismissed the claim. The findings of the lower appellate Court are that the plaintiff had never accepted the condition set up by the defendant regarding his continuance so long as he paid rent regularly, and there is again a further finding that she never accepted the term not to eject the defendant if rents were paid. The learned Judge says : 'it seems to me that it is clear that she did not accept that condition.' The defendant relied on certain correspondence which passed between the ' parties prior to the occupation of the house by the defendant.

2. The lower Court has rightly pointed out that the defendant was a trained lawyer familiar with the work of Courts, whereas the plaintiff was an old lady, a lay person, who could not be expected to be acquainted with the technicalities of the law. She had offered to let out the house on rent to the defendant on Rs. 75 a month and she had written a letter to that effect to the defendant on the 12th May 1930 that he was to take the house on a monthly rental of Rs. 75. The defendant offered some conditions in his letter of the 13th May. On 14th May 1930, the plaintiff sent a letter in which, among other matters, she said that 15 days notice of removal to be given on the fifteenth of a month by either party, that is the landlord and tenant, should be a condition. The defendant in reply never accepted all the conditions put forward by the plaintiff in her letter of 14th May 1930. On the other hand, he accepted some of them and put forward no less than nine more conditions, including the one in which it was said that so long as he paid the rent regularly and complied with the conditions the landlady should not be entitled to give him notice to quit. As the offer made by the plaintiff was not accepted in full, but a large number of new conditions were proposed, it became a counter-offer and by no means an acceptance. It is an admitted fact that the plaintiff never replied to this letter.

3. The defendant, although he was a lawyer and was dealing with a lay person, never took care to obtain any writing from the plaintiff clearly indicating that she agreed to the condition that she would not be entitled to serve notice upon the defendant to vacate the premises so long as rents were paid regularly. It would indeed be. a strange condition, unless there were some consideration, like premium for a permanent lease, actually paid. On 18th May 1930, without having received any letter from the plaintiff accepting his terms, and without taking any writing from her as to exact conditions agreed upon, the defendant occupied the house and began to live in it as a tenant and continued to pay Rs. 75 a month as rent for the house. It is therefore not surprising that the lower appellate Court has come to the conclusion that there was never any contract as put forward by the defendant and that the plaintiff had never in fact accepted the condition depriving her of her right to get the premises vacated and restricting such right to the case only when rents were not paid regularly. Such a lease would obviously be a permanent lease which would enure almost for ever, at least from generation to generation so long as rents were paid regularly and no other conditions were expressly broken. The lower appellate Court has further found it most difficult to believe that the defendant would have on a mere oral assurance or acceptance of his terms by the plaintiff taken possession of the house without getting something in a more indelible form from her, and accordingly its categorical finding is that the term was never accepted either expressly or tacitly by the plaintiff, and that this condition in dispute which is the fundamental and sole deciding factor in the defendant's case has not been established to have been agreed upon. He has further remarked that as without taking any writing from the plaintiff to enter into the possession of the house, the defendant took possession, it may be inferred that he agreed to the terms which had been offered by her, which are the ordinary terms on which houses are let out on monthly tenancies terminable at 15 days' notice. The oral evidence in a matter of this kind was of course interested and was rejected by the lower appellate Court.

4. The learned Judge of this Court has again taken pains to examine the entire correspondence carefully and after a consideration of the entire correspondence has come to the same conclusion that there was no contract in fact between the parties that the defendant would not be liable to ejectment so long as he paid rents regularly. We think it was wholly unnecessary for the learned Judge to go into this matter as the finding really was one of fact. It was not a case of any interpretation of a title deed which was the foundation of the defendant's title, but an inference to be drawn from a number of documents as well as evidence and circumstances which cannot be questioned in second appeal. Quite apart from this, we are satisfied that the defendant's case has not a leg to stand upon. The contract of lease as alleged by the defendant would become no doubt one of a permanent lease or lease in perpetuity which would hold good from generation to generation so long. as rents were paid regularly. There was no writing obtained from the plaintiff for such a lease and we have only the condition contained in the letter written by the defendant, the alleged lessee. According to the rulings of this Court, before a lease can be validly executed and registered, there ought to be a writing signed by the lessor when immoveable property is leased out, and a mere kabuliyat by the defendant is of no avail. The lease being for more than a year and continuing in perpetuity would require registration. Without a registered document such a lease could not be given effect to. The mere fact that the defendant obtained possession would not entitle him to force upon the plaintiff terms which would amount to a grant in perpetuity.

5. On behalf of the defendant it is urged that Section 53-A, T.P. Act, would help the defendant when there is a completed contract. That section is obviously inapplicable because it refers to cases where there is a contract to transfer for consideration any immoveable property by writing signed by a person or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. Admittedly there is no writing signed by the plaintiff containing any such condition, much less any writing from which such a condition could be deduced with reasonable certainty. Again the part performance of the contract would entitle the defendant to remain in possession until evicted on notice and would entitle the plaintiff to claim rent from the defendant, but in the absence of a written contract signed by her would not grant to the defendant permanent rights as rights of a perpetual lessee. The next point urged on behalf of the defendant is that the notice served by the plaintiff was invalid inasmuch as this notice should have expired on the 1st August and not on the 31st July,. The defendant in one breath pleads that there was a contract under which he was not liable to ejectment at all, and in the same breath pleads that there was a contract between the parties that the tenancy could be terminated on 15 days' notice. The fact is that the letter which contained the condition of 15 days' notice was never accepted by the defendant. We have already pointed out that his reply was in the form of a counter-offer which had imposed fresh conditions; There is therefore nothing to 'show that this condition was expressly accepted by the defendant. Indeed if his case had any semblance to reality he would not have accepted the condition of being compelled to vacate the premises on receipt of 15 days' notice. The contention is based on the decision of their Lordships of the Privy Council in Benoy Krishna Das v. Salsiccioni . That was, however, a case under Section 110, T.P. Act, which provides that where the time limited by a lease of immoveable property is expressed, as commencing from a particular day, in computing that time such day shall be excluded. Admittedly-there was no writing in the present case where any particular date was express's as the date from which the lease would commence. The case in the absence of a contract to the contrary would be governed by Section 106, T. P. Act, and monthly rent being payable, the lease would terminate by 15 days' notice, expiring with the end of a month of the tenancy. The plaintiff had given notice on 24th June 1931 calling upon the defendant to vacate the premises by the midnight of the 31st July following. It is impossible to accept the contention that the plaintiff was bound to send the notice on the 15th July and could not have sent it earlier, or that she ought to have asked the defendant to vacate the premises on the expiry of the 1st August and not at the end of the 31st July.

6. The last point urged is that the defendant has paid some municipal taxes and has also spent some money on repairs for which credit should have been given. The points were not taken in the written statement nor was the matter brought to the notice of the lower appellate Court by means of any written application. There is accordingly no reference to these points in the judgment of the lower appellate Court. The point was therefore not allowed to be raised by the learned Judge of this Court at this late stage. The contention urged by the defendant is that under Order 20, Rule 12, Civil P.C., it was the duty Of the Court below to pass a preliminary decree in the first instance and then order the amount due to the plaintiff to be ascertained so as to give the, defendant an opportunity to show the payment of taxes and the amount spent by him on repairs. When the plaintiff made it clear that she would not press her claim for damages and confined her relief to the recovery of the fixed rents which had been agreed upon between the parties, the amount was definitely ascertained and there was no Occasion for framing a preliminary decree so that there may be another ascertainment of the amount due to the plaintiff. A preliminary decree becomes necessary where the exact amount has to be ascertained after an examination of fresh evidence. There was no such thing in this case and we do not think that the Court below was bound to pass a preliminary decree in the first instance.

7. The case of the defendant has completely broken down, and it is not surprising that he should have failed. When a lawyer-deals with a lay person, especially a -stranger, in respect of a contract of lease regarding immoveable property, it is expected that -he would have a written and an unambiguous document executed by the lady. If he relies merely on her implied consent by her not objecting to the defendant's occupation, he has himself to thank for if the Courts refuse to accept this story. It is difficult to believe that if there had been a clear and agreed contract between the parties, no writing would have been taken from the plaintiff under her own signature so that she might not have any longer any loophole for escape. We accordingly dismiss this appeal with costs.